ASSET PURCHASE AGREEMENT
DATED AS OF
NOVEMBER 14, 2011
BETWEEN
SCIENTIFIC INDUSTRIES, INC.
SCIENTIFIC BIOPROCESSING, INC.
AND
FLUOROMETRIX CORPORATION
TABLE OF CONTENTS
1. DEFINITIONS. 3
1.1. DEFINITIONS 3
1.2. OTHER DEFINED TERMS 9
2. PURCHASE OF THE ACQUIRED ASSETS. 10
2.1. PURCHASE AND SALE 10
2.2. ASSUMPTION OF LIABILITIES 11
2.3. EXCLUDED ASSETS 11
2.4. EXCLUDED LIABILITIES 11
3. PURCHASE PRICE AND CLOSING. 11
3.1. PURCHASE PRICE 11
3.2. CLOSING 12
3.3. INSTRUMENTS OF TRANSFER 12
3.4. PURCHASE PRICE ALLOCATION 12
4. REPRESENTATIONS AND WARRANTIES OF ASSIGNOR 13
4.1. DUE ORGANIZATION; QUALIFIED; NO SUBSIDIARIES. 13
4.2. AUTHORIZATION 13
4.3. NO CONFLICTS OR VIOLATION. 13
4.4. CONTRACTS AND COMMITMENTS 13
4.5. MATERIAL CONTRACTS; NO DEFAULT; ASSUMED CONTRACTS
AND COMMITMENTS; NO DEFAULT. 14
4.6. TITLE TO AND SUFFICIENCY OF THE ACQUIRED ASSETS 15
4.7. MATTERS RELATING TO THE ACQUIRED ASSETS. 15
4.8. LITIGATION; OTHER CLAIMS 15
4.9. LICENSES AND PERMITS; REGULATORY FILINGS; LEGAL
COMPLIANCE. 15
4.10. CONDUCT OF BUSINESS IN COMPLIANCE WITH
REGULATORY REQUIREMENTS; WARRANTIES. 16
4.11. SUBJECT IP. 16
4.12. FINANCIAL STATEMENTS 18
4.13. ENVIRONMENTAL MATTERS 19
4.14. ABSENCE OF CERTAIN LIABILITIES 19
4.15. INVESTMENT REPRESENTATIONS 19
4.16. BROKERAGE 19
4.17. DISCLOSURE 20
5. REPRESENTATIONS AND WARRANTIES OF ASSIGNEE AND SI 20
5.1. DUE ORGANIZATION 20
5.2. AUTHORIZATION; BINDING OBLIGATIONS 20
5.3. NO DEFAULT OR VIOLATION 20
5.4. SECURITIES FILINGS 20
5.5. BROKERAGE 21
5.6. VALID ISSUANCE OF SHARES 21
6. CONDITIONS PRECEDENT TO CLOSING 21
6.1. CONDITIONS TO EACH PARTY'S OBLIGATIONS UNDER
THIS AGREEMENT 21
6.2. CONDITIONS TO OBLIGATIONS OF ASSIGNEE AND SI 22
6.3. CONDITIONS TO OBLIGATIONS OF ASSIGNOR 23
7. POST-CLOSING MATTERS 24
7.1. COVENANT OF FURTHER ASSURANCES 24
7.2. PAYMENT OF TAXES 24
7.3. DEFENSE OF CLAIMS AND LITIGATION 25
7.4. RETENTION OF RECORDS 25
7.5. SHARING OF DATA 25
7.6. CONFIDENTIALITY. 25
8. NON-COMPETITION COVENANT. 26
9. INDEMNIFICATION PROVISIONS 26
9.1. INDEMNIFICATION. 26
9.2. INDEMNIFICATION PROCEDURE. 27
9.3. SURVIVAL OF REPRESENTATION AND WARRANTIES 29
10. MISCELLANEOUS. 29
10.1. WAIVERS AND AMENDMENTS. 29
10.2. PERFORMANCE 29
10.3. NOTICES 29
10.4. EXPENSES 30
10.5. PUBLICITY 30
10.6. ENTIRE AGREEMENT 31
10.7. GOVERNING LAW. 31
10.8. INTERPRETATION 31
10.9. MODIFICATION 31
10.10. SEVERABILITY 32
10.11. DISCLOSURE SCHEDULE AND EXHIBITS 32
10.12. COUNTERPARTS AND FACSIMILE SIGNATURES 32
10.13. NO ASSIGNMENT BY ASSIGNOR 32
10.14. WAIVER OF JURY TRIAL 33
List of Exhibits and Disclosure Schedule
Exhibit A - Escrow Agreement
Exhibit B - Form of Promissory Note
Exhibit C - R&D Agreement
Exhibit D - Form of Non-Competition Agreement
Exhibit E - Form of Legal Opinion of Xxxxxx LLP
Disclosure Schedule
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made this 14th day of November,
2011 by and among SCIENTIFIC INDUSTRIES, INC., a Delaware Corporation
("SI"), its wholly owned subsidiary, SCIENTIFIC BIOPROCESSING, INC.,
a Delaware corporation ("Assignee") and FLUOROMETRIX CORPORATION, a
Massachusetts corporation ("Assignor").
WHEREAS, Assignor owns and desires to sell and assign to
Assignee and Assignee desires to acquire from Assignor all of the assets
of Assignor related to Bioprocessing (as hereinafter defined)
including licenses and sublicenses with respect to patents owned by the
University of Maryland Baltimore County ("UMBC"); and
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the
Parties hereby agree as follows:
1. Definitions.
1.1. Definitions. In addition to the terms defined elsewhere
in this Agreement, including the recitals, the following terms, when
used herein, shall have the following meanings:
(a)"Acquired Assets" shall have the meaning set forth in
Section 2.1 below.
(b) "Acquisition" shall mean the purchase of the Acquired
Assets and the other transactions contemplated by this Agreement and
the other Related Documents.
(c) "Affiliate" shall mean a person that directly or
indirectly, through one or more intermediaries, controls or is controlled
by, or is under common control with, the person specified. For purposes
of this definition, the terms "control," "controlled by" and "under
common control with" shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of
such person and, in the case of an entity, shall require (i) in the case of
a corporate entity, direct or indirect ownership of at least a majority of
the securities having the right to vote for the election of directors, and
(ii) in the case of a non-corporate entity, direct or indirect ownership of
at least a majority of the equity interests with the power to direct the
management and policies of such non-corporate entity.
(d) "Agreement," "this Agreement," "hereto," "hereof,"
"hereunder," "hereby," and similar expressions refer to this Agreement as
a whole, including the schedules, appendices and exhibits attached hereto,
and not any particular article, section, subsection or other subdivision
hereof or thereof.
(e) "Assignor-Related Claims" shall mean claims arising out
of or connected or substantially related to (i) the ownership or the
Exploitation of any Acquired Asset by or on behalf of Assignor or any
Assignor Affiliate on or before the Closing Date or (ii) the operation of
any business by or on behalf of Assignor or any Assignor Affiliate at any
time with respect to the Acquired Assets.
(f) "Assumed Contracts" shall mean the contracts listed in
Section 1.1(f) of the Disclosure Schedule.
(g) "Bioprocessing" shall mean all products, systems and
methods employing the bioprocessing technology which was or is to be
employed or applied in whole or in part and the related Trade Secrets by
or on behalf of Assignor under or with respect to the Patent Rights.
(h) "Bioprocessing Business" shall mean the research,
development, production, marketing and sale of Bioprocessing products,
systems, methods and processes with respect to the then or contemplated
business of SI or the Assignee including Bioprocessing.
(i) "Code" shall mean the United States Internal Revenue Code
of 1986, as amended.
(j) "Computer Code" shall mean hardware, firmware, and
software, regardless of form (e.g., embedded logic, object code or
source code) or language, where such hardware, firmware, and software
performs logic or other operations or includes instructions, such that
when executed, the instructions cause a computer or other data processing
system to carry out logic or other operations.
(k) "Confidential Information" shall mean all ideas and
information of any kind that are held in confidence by one person and
transferred, disclosed or made available to a receiving person and are
identified at the time of disclosure as being proprietary or confidential.
The obligations in this Agreement with respect to Confidential Information
shall not apply to any portion of the Confidential Information that the
receiving person can demonstrate by legally sufficient evidence (i) now or
hereafter, through no act or failure to act on the part of the receiving
person, is or becomes public; (ii) is known to the receiving person or one
of its Affiliates at the time such person receives such Confidential
Information except as a result of the person?s employment or affiliation
with Assignor; (iii) is hereafter furnished to the receiving person by a
third person unrelated to the disclosing person without violating any
agreement with the disclosing person; or (iv) is independently developed
by the receiving person or one of its Affiliates without use of any
Confidential Information received from the other person.
(l) "Copyrights" shall mean all original works of
authorship, including all copyrights and registrations or applications
for registration of copyrights in any jurisdiction, including any
renewals or extensions thereof, advertising materials, publications,
technical papers and Computer Code, instructional brochures, and any
right (whether by license or otherwise) to use any of the foregoing,
that are owned, used or held for use by Assignor in connection with any
Acquired Asset.
(m) "Disclosure of Invention" shall mean any written, oral
or visual idea, concept or invention of Assignor, any Assignor Affiliate
or any person from whom Assignor or any Assignor Affiliate has obtained
intellectual property rights in any manner relating to an Acquired Asset,
whether or not such idea, concept or invention has been filed as a patent
application or submitted by the inventor(s) to any attorney, agent or
other representative of Assignor or any Assignor Affiliate for evaluation
as to patentability.
(n) "Disclosure Schedule" shall mean the lists and other
information delivered by Assignor to Assignee in response to the
requirements of Section 4.
(o) "Environmental Law" shall mean any Law relating to:
(i) the protection or restoration of the environment, health, safety,
or natural resources, (ii) the handling, use, presence, disposal,
release or threatened release of any Hazardous Substance, or (iii)
wetlands, indoor air, pollution, contamination or any injury or threat
of injury to persons or property in connection with any Hazardous
Substance.
(p) "Exploit" or "Exploitation" shall mean, with respect to
any product, invention, system, process, intellectual property or asset,
to disclose, manufacture, produce, import, use, operate, research,
design, develop, perform clinical or other testing, perform quality
assurance testing, commercialize, revise, repair, register, maintain,
modify, enhance, upgrade, prepare derivative works, seek regulatory
concurrences or approvals, package, label, improve, formulate, export,
transport, distribute, promote, market, advertise, sell, have sold,
offer for sale or license such product, invention, intellectual property
or asset, or to have another person do any of the same.
(q) "Governmental Authority" shall mean any nation,
territory or government, foreign, domestic or multinational, any state,
local or other political subdivision thereof, and any bureau, court,
tribunal, board, commission, department, agency or other entity exercising
executive, legislative, judicial, regulatory or administrative functions
of government, including all taxing authorities and all U.S. and European
bodies and all other entities exercising regulatory authority over
Acquired Assets or devices.
(r) "Hazardous Substance" shall mean any substance that is
(i) listed, classified or regulated pursuant to any Environmental Law,
(ii) any petroleum product or by-product, asbestos-containing material,
lead-containing paint or plumbing, polychlorinated biphenyls, radioactive
materials or radon, or (iii) any other substance which is the subject of
regulatory action by any Governmental Authority in connection with any
Environmental Law.
(s) "Initial Specifications" shall mean any and all
patterns, plans, designs, research data, techniques, methods, formulae,
specifications, Manufacturing Processes, vendor, raw material and
component lists and specifications, quality testing procedures, process
validations, environmental control documentation, design history files,
operating manuals, blueprints, sketches, drawings, manuals, data, records,
procedures, research and development records, compositions, improvements,
proposals, technical and computer data and Computer Code and related
documentation, process descriptions and other technical data (including
chemical formulations, design specifications, standard operating
procedures and manufacturing protocols) reasonably necessary for or used
or held for use by or on behalf of Assignor or any Assignor Affiliate in
connection with the Exploitation of any Acquired Asset, and all copies
and tangible embodiments of the foregoing.
(t) "Insider" shall mean any stockholder, director or
officer of Assignor or any Assignor Affiliate.
(u) "Intellectual Property" means all patents, patent
applications, and patent disclosures, together with all reissuances,
continuations, continuations-in-part, revisions, extensions, and
reexaminations thereof, trademarks, trade names, corporate names,
goodwill associated therewith, and applications, registrations, and
renewals in connection therewith, copyrights and applications,
registrations, and renewals in connection therewith, websites, mask
works and applications, registrations, and renewals in connection
therewith, trade secrets and confidential business information
including ideas, research and development, know-how, formulas,
compositions, manufacturing and production processes and techniques,
technical data, designs, drawings, specifications, customer and supplier
lists, pricing and cost information, computer software (including data
and related documentation), other proprietary rights that are
used or are necessary to the conduct of the Bioprocessing Business
by Assignor.
(v) "Knowledge" shall mean the knowledge, after due
inquiry, of the officers (including the Chief Executive Officer, Chief
Financial Officer and any person holding an office of vice president
(or comparable office of authority) or above) and directors of Assignor
and the technical employees of Assignor?s business related to the
Acquired Assets.
(w) The term "Law" shall mean any federal, state, local,
municipal, international, multinational, foreign or other law, statute,
constitution, principle of common law, resolution, ordinance, code,
order, edict, decree, rule, regulation, guideline, ruling requirement
or other pronouncement issued, enacted, adopted, promulgated, implemented
or otherwise put into effect by or under the authority of any Governmental
Authority.
(x) The term "license" shall include not only rights granted
under formal or informal license agreements including the Subject License,
but also other rights to use (including rights granted by means of
covenants not to xxx).
(y) "Lien" shall mean any interest, consensual or otherwise,
in property, whether real, personal or mixed, or assets, tangible or
intangible, securing an obligation owed to, or a claim by a third person,
or otherwise evidencing an interest of a person other than the owner of
the property or asset, whether such interest is based on Law or contract,
and including any security interest, security title, lien, mortgage,
recordation of abstract of judgment, deed of trust, deed to secure debt,
encumbrance, restriction, charge, covenant, legal or equitable claim,
exception, encroachment, easement, right of way, license, permit, pledge,
conditional sale, option, trust (constructive or otherwise) or trust
receipt or a lease, consignment or bailment for security purposes or other
title exception affecting any property or asset.
(z) "Litigation Matter" shall mean any claim, investigation,
arbitration, grievance, litigation, action, suit or proceeding,
administrative or judicial, to which a Party is (or, to such Party's
knowledge, is threatened to be made) a party, or relating to any Acquired
Asset, or this Agreement (in each case whether such Party is a plaintiff,
defendant or otherwise), at law or in equity or otherwise, or before any
Governmental Authority.
(aa) "Manufacturing Processes" shall mean all processes
related to the production of the Acquired Assets, including: (i) flow
charts and process descriptions of each and every process step for the
manufacture of the Acquired Assets; (ii) molding parameters such
as temperature, flow rate and pressure for all molds and molded components
in the Acquired Assets; and (iii) full and complete specifications on
all equipment used specifically for the Acquired Assets, such as molds,
gluing stations, fixtures, jigs and test equipment including
software and Computer Code.
(bb) "Material Adverse Effect" shall mean any change,
effect or circumstance that (i) is materially adverse to any Acquired
Asset, (ii) materially impairs the ability of any Party to consummate
the transactions contemplated by, or to perform its obligations under,
this Agreement or any other Related Document, or otherwise materially
impedes the consummation of the Acquisition or (iii) has a material
adverse effect on the financial value of any Acquired Asset to Assignee
or on the ability of Assignee to Exploit any Acquired Asset after the
Closing.
(cc) "Net Fees and Royalties? shall mean the fees and
royalties paid to or on account of Assignee after deducting the fees
and royalties paid or to be paid by Assignee or its assignee to the
licensor or sublicensor under the license and sublicense agreements
pursuant to which the fees and royalties were received.
(dd) "Net Infringement Fees" shall mean payments made
or credits awarded to Assignee or its assignee by a sublicensee under
the Subject Sublicenses which are part of the Acquired Assets for
alleged infringement of the related patent net of amounts paid or
credited or to be paid or credited to any sublicensee pursuant to
the terms of the relevant Subject Sublicense.
(ee) "Parties" shall mean Assignor, Assignee and SI, each
of which is sometimes referred to as a "Party."
(ff) "Patent Rights" shall mean the United States and
foreign patents and patent applications listed in Section 1.1(ff) of
the Disclosure Schedule.
(gg) The term "person" shall mean an individual,
corporation, partnership, limited partnership, limited liability
company, unincorporated association, trust, joint venture, union or
other organization or entity, including a Governmental Authority.
(hh) "Records" shall mean and include all of the
following to the extent that they relate to any Acquired Asset
(in each case, whether such materials are evidenced in writing,
electronically, or otherwise): all business records (including
regulatory compliance records); all Regulatory Correspondence
(together with all supporting and background documentation);
submissions and reports to any notified body or competent authority
and all other records and materials necessary to comply with
requirements of third party auditors; all data and information
relating to any testing of Acquired Assets; risk management records;
documents, correspondence, studies, reports, and all other books,
ledgers, files, and records of every kind; tangible data; any vendor,
supplier or service provider lists (including a description of the
underlying commercial arrangements with such vendors, suppliers or
service providers that may omit the financial terms); promotional
literature and advertising materials with support data; catalogs;
research material; technical information, blueprints, technology,
technical designs, drawings, specifications and other product
development records used or held for use by or on behalf of Assignor
or any Assignor Affiliate.
(ii) "Regulatory Correspondence" shall mean any and
all of the following: all applications, registrations, approvals,
concurrences, and filings with, and other submissions and
correspondence relating to any Acquired Asset, including to or
from a United States or foreign patent office, any state counterpart,
and any other Governmental Authority (in each case together
with all supporting and background documentation).
(jj) "Related Documents" shall mean (i) each of this
Agreement, the R&D Agreement, the Escrow Agreement and the instruments
of transfer contemplated by Section 3.3 and (ii) each other document to
which Assignor or any of the Assignor Affiliates or Assignee or
SI or any of its Affiliates is a party that is delivered in connection
with the transactions contemplated by this Agreement.
(kk) "Subject IP" shall mean all rights in any and all
of the following throughout the world: (i) Subject Patent Rights,
(ii) Copyrights, (iii) Trademarks, (iv) Trade Secrets and (v) rights to
xxx, recover and retain damages for past, present and future infringement,
misappropriation, dilution, or other violation of any of the foregoing.
(ll) "Subject License" shall mean the Exclusive License
Agreement, effective January 31, 2001 between UMBC and Assignor with
respect to the Subject Patent Rights as to the Patent Rights and
Amendments thereto dated as of April 27, 2001, May 4, 2004, December
31, 2005 and as of May 1, 2008.
(mm) "Subject Patent Rights" shall mean all Patent Rights
that are licensed to or otherwise available to Assignor or any Assignor
Affiliate and used or held for use by Assignor or any Assignor Affiliate
in connection with any Acquired Asset or the Exploitation of any
Acquired Asset.
(nn) "Subject Sublicenses" shall mean the sublicenses
granted by Assignor under the Subject License including, without
limitation, those set forth in Section 1.1(nn) of the Disclosure Schedule.
(oo) "Tax" or "Taxes" shall mean any federal, state, local,
or foreign income, single business, gross receipts, license, payroll,
employment, excise, severance, stamp, occupation, premium, windfall
profits, environmental (including Taxes under Code Section 59A), customs
duties, capital stock, franchise, profits, withholding, social security
(or similar), unemployment, disability, real property, personal property,
sales, use, transfer, registration, value added, alternative or add-on
minimum, estimated, or other tax of any kind whatsoever, whether
computed on a separate or consolidated, unitary or combined basis or
in any other manner, including any interest, penalty, or addition
thereto, whether disputed or not and including any obligation to
indemnify or otherwise assume or succeed to the Tax liability of any
other person.
(pp) "Tax Return" shall mean any return, declaration,
report, claim for refund, or information return or statement relating
to Taxes, including any schedule or attachment thereto, and including
any amendment thereof.
(qq) "Trademarks" shall mean all trademarks, service marks,
trade dress, logos, slogans, trade names, corporate names, and Internet
domain names, together with all translations, adaptations, derivations,
and combinations thereof and including all goodwill associated therewith,
and all applications, registrations, and renewals in connection therewith,
that are owned, used or held for use by Assignor in connection with any
Acquired Asset, including the Registered Trademarks set forth in Section
1.1(q)(q) of the Disclosure Schedule.
(rr) "Trade Secret" shall mean all data and information
owned by, used by or held for use by or on behalf of or licensed to
(or otherwise available to) Assignor or any Assignor Affiliate and
maintained in confidence by Assignor or any Assignor Affiliate, that in
any way relates to any Acquired Asset or the Exploitation of any Acquired
Asset, including all related processes, plans, designs, research,
operating manuals, methods, compounds, formulae, discoveries, developments,
designs, drawings, technology, techniques, procedures, know-how,
specifications, inventions, customer and supplier lists (including a
description of the underlying commercial arrangements with such customers
and suppliers that may omit the financial terms), and other scientific
or technical data or information conceived, memorialized, developed or
reduced to practice, in each case whether or not patentable in any
jurisdiction. Until such time as any particular patent has been
published in accordance with the terms of a patent application or
such patent application has been published, the term "Trade Secret" shall
be deemed to include all inventions disclosed in such patent application.
1.2. Other Defined Terms. Definitions of the defined terms
listed below are contained in the Section set forth opposite the defined
term in the table below:
Defined Term Section of Agreement
Acquired Assets Section 2.1
Assignee Preamble
Assignee Indemnified Parties Section 9.1(b)
Assignor Preamble
Assignor Indemnified Parties Section 9.1(a)
Assumed Liabilities Section 2.2
Bioprocessing Business Section 8(a)
Claim Notice Section 9.2(a)
Closing Section 3.2
Closing Date Section 3.2
Contracts Section 4.4
Damages Section 9.1(a)
Escrow Agent Section 3.1
Escrow Agreement Section 3.1
Escrow Fund Section 3.1
Excluded Assets Section 2.3
Excluded Liabilities Section 2.4
Indemnification Claim Section 9.2(a)
Indemnified Party Section 9.2(a)
Indemnifying Party Section 9.2(a)
Material Contracts Section 4.4
Patent Applications Section 4.11
Permits Section 4.9(a)
Product Data Section 4.7(a)
Purchase Price Section 3.1
R&D Agreement Section 6.2(e)
Securities Section 4.15
Shares Section 4.15
SI Preamble
Third-Party Claim Section 9.2(a)
2. Purchase of the Acquired Assets.
2.1. Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, at the Closing, Assignor shall sell,
transfer and assign to Assignee, and Assignee shall purchase and acquire
from Assignor, all right, title and interest throughout the world in and
to all of the assets of Assignor (but not including any Excluded Assets,
as defined in Section 2.3), as they exist on the Closing Date (the
"Acquired Assets"), in each case free and clear of all Liens except for
the Assumed Liabilities, including without limitation:
(a) the Subject Patent Rights;
(b) all licenses and sublicenses relating to the Patent
Rights set forth in Section 2.1(b) of the Disclosure Schedule;
(c) the Subject License;
(d) all Subject Sublicenses;
(e) the Subject IP;
(f) all Product Records related to the Bioprocessing
Business and to the Subject License and Subject Sublicenses;
(g) to the extent transferable, all Permits, if any;
(h) all income, royalties, damages and payments due or
payable as of the Closing Date or thereafter relating to any of the
Subject IP, Subject License and Subject Sublicenses (including damages
and payments for past, present or future infringement, misappropriation,
dilution or other violation thereof, the right to xxx, recover and
retain damages for past, present or future infringement,
misappropriation, dilution or other violation thereof, and any and
all corresponding rights that, now or hereafter, may be secured);
(i) the right to defend against claims made that any of the
Subject IP or Subject Sublicenses infringes, misappropriates, dilutes or
otherwise violates the intellectual property rights of any person;
(j) the right to prosecute all Patent Applications and
maintain all Subject Patent Rights included in the Subject IP;
(k) to the extent the following relate to any Acquired
Asset: all claims, causes of action, chooses in action, rights of
recovery, and rights of set-off of any kind;
(l) all rights under any Assumed Contracts;
(m) to the extent that any of the following relate primarily
to an Acquired Asset: all other assets of Assignor (whether real,
personal or mixed, tangible or intangible);
(n) all goodwill and moral rights relating to any Acquired
Asset; and
(o) all other assets of Assignor including its inventory and
work-in-progress related to Bioprocessing and the Bioprocessing products,
systems and methods owned or under development by or on behalf of Assignor.
2.2. Assumption of Liabilities. Effective as of the Closing
Date, Assignee shall assume and agree to perform the Assumed Liabilities,
as set forth in this Section 2.2. Assignee shall be responsible for
payment and performance of, and agrees to pay and perform, and be solely
responsible for all of (and Assignor shall have no responsibility with
respect to) the Assumed Liabilities. The "Assumed Liabilities" shall
mean the outstanding obligation not to exceed $230,000 of Assignor to
UMBC under the Subject License, payment for which shall be made by
Assignor at the Closing pursuant to Section 3.1(a)(iii) and all
liabilities of Assignor arising under the Acquired Assets with respect
to post-Closing conduct (other than liabilities or obligations
attributable to any failure by Assignor to comply with the terms of
any Assumed Contract except for the aforesaid $230,000 obligation to
be paid by Assignee at the Closing pursuant to Section 3.1(a)(iii) or
liabilities which both (x) are not apparent on the face of any
Assumed Contract and (y) were not disclosed to Assignee in the
Disclosure Schedule).
2.3. Excluded Assets. Nothing herein shall be deemed to sell,
transfer, assign or convey to Assignee, Assignor's right, title and
interest as of the Closing Date in and to all assets other than the
Acquired Assets (the "Excluded Assets") including all computers,
printers, photocopiers, fax machines and other office equipment and
all business records of Assignor or any Assignor Affiliate not related
to the Acquired Assets.
2.4. Excluded Liabilities. Assignor shall be responsible for
payment and performance of, and agrees to pay and perform, and be
solely responsible for all (and Assignee shall not have any responsibility
with respect to any) liabilities and obligations of Assignor other
than the Assumed Liabilities (the "Excluded Liabilities"), including all
liabilities and obligations in any way relating to any Acquired Asset on
or prior to the Closing Date.
3. Purchase Price and Closing.
3.1. Purchase Price. Subject to the other provisions of this
Agreement, Assignee shall pay to Assignor, the purchase price (the
"Purchase Price") as follows:
(a) at Closing (except as provided in (iv) below):
(i) $100,000 by wire transfer of immediate funds to Xxxxxxx
Xxxxxx & Xxxxxxxxxx LLC, as the Escrow Agent to be held pursuant to the
Escrow Agreement in the form of Exhibit A hereto;
(ii) $160,000 by wire transfer of immediate funds to the account
designed by Assignor;
(iii) $230,000 by a promissory note in the form of Exhibit B
hereto payable to UMBC on behalf of Assignor and bearing interest at
3.25% (representing the prime rate of Chase Bank published in the
Wall Street Journal on the date of Closing) with principal and
interest payable in 36 equal monthly installments of $6,714.05;
(iv) Such number of restricted shares of Common Stock of SI
registered in the name of the Assignor with an aggregate value of
$400,000 (the ?Shares?) based on a per share value equal to the
average of the closing bid and asked prices on the Over-the-Counter
Bulletin Board for the three business days immediately prior to the
Closing Date as reported in the OTC Market Report. One-third of the
Shares shall be delivered to Assignor as soon as practicable but no
later than three (3) business days following the Closing Date, and
subject to the terms of the Escrow Agreement, the remaining two-
thirds of the Shares shall be delivered to the Escrow Agent, of
which one-half are to be delivered by the Escrow Agent to Assignor
on each of the first and second anniversary of the Closing Date.
(b) In addition, Assignee shall pay Assignor within
thirty (30) days following receipt an amount equal to (i) thirty
percent (30%) of the Net Fees and Royalties (exclusive of Net
Infringement Fees) received by Assignee or its assigns under a
sublicense with respect to the Subject IP, (ii) fifty percent (50%)
of the Net Infringement Fees received by Assignee or its assignee
under a sublicense with respect to the Subject IP; and (iii) fifty
percent (50%) of the one-time fees, if any, other than royalty fees,
paid by a person with respect to the grant of a sublicense, which
fees are not based on performance, sales, revenues or results of the
sublicensing party.
3.2. Closing. The closing of the purchase and sale of the
Acquired Assets (the "Closing") shall be held at 10:00 a.m. at the
offices of Xxxxxxx Xxxxxx & Xxxxxxxxxx LLC, 000 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000 (or remotely via exchange of documents and
signature pages including via PDF and facsimile) on November 14, 2011
or such other date as the Parties may agree (the "Closing Date").
3.3. Instruments of Transfer. The transfer of the Acquired
Assets to Assignee and the assumption of Assumed Liabilities by
Assignee at the Closing shall be effected by the execution and
delivery of one or more bills of sale and assignment and other
instruments of transfer, all in forms prepared by Assignee and
reasonably acceptable to Assignor.
3.4. Purchase Price Allocation. Assignee shall prepare an
allocation of the Purchase Price and Assumed Liabilities (and all
other capitalized costs) among the Acquired Assets in accordance
with Code Section 1060, which allocation shall be binding upon Assignor.
Assignee shall deliver such allocations to Assignor within sixty
(60) days after the Closing Date. Assignee and Assignor shall
report and file Tax Returns (including IRS Form 8594) in all respects
and for all purposes consistent with such allocation as prepared
by Assignee. Assignor shall timely and properly prepare, execute,
file and deliver all such documents and other information as Assignee
may reasonably request to prepare such allocation.
4. Representations and Warranties of Assignor. As a material
inducement to Assignee and SI to enter into this Agreement and each
of the other Related Documents to which it is a party, Assignor
hereby represents and warrants to Assignee and SI that, except as
set forth in the Disclosure Schedule, the following statements are
true and correct as of the Closing Date:
4.1. Due Organization; Qualified; No Subsidiaries.
Assignor is a corporation duly organized, validly existing and in good
standing under the laws of Massachusetts. Assignor has corporate
power to own its properties and to conduct its business as currently
owned and conducted. Assignor does not have and has not had any
subsidiaries and does not own and has not owned any equity interest
in any other corporation or entity.
4.2. Authorization. Assignor has the full legal right, power
and authority to enter into and perform the transactions contemplated by
this Agreement and the other Related Documents to which it is a party,
without need for any registration, qualification, consent, approval,
authorization, license or order of, or notice to or filing with any
Governmental Authority or other person. The execution, delivery and
performance by Assignor of this Agreement and the other Related
Documents to which it is a party and the consummation by Assignor of
the transactions contemplated hereby and thereby have been duly and
validly authorized and approved by all necessary corporate action of
Assignor, including approval of this Agreement and the other Related
Documents to which Assignor is a party by the Board of Directors and
the stockholders of Assignor. This Agreement and the other Related
Documents to which Assignor is a party evidence the legal, valid and
binding obligations of Assignor, enforceable against Assignor in
accordance with their respective terms, subject to bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or
similar Law relating to or affecting the rights and remedies of
creditors generally. This Agreement and the other Related Documents
to which Assignor is a party have been duly and validly executed and
delivered by Assignor.
4.3. No Conflicts or Violation. The execution, delivery
and performance by Assignor of this Agreement and the other Related
Documents to which it is a party do not and will not violate or require
any registration, qualification, consent, approval, authorization,
license or order of, or notice to or filing under any Law by which
Assignor or any of its assets or properties may be bound or conflict
with, require any registration, qualification, consent, approval,
authorization, license or order of, or notice to or filing under, or
result in the breach or termination of any provision of, constitute a
default under, result in the acceleration of the performance of
Assignor's obligations under, result in the loss of Assignor's rights
under, result in the vesting or enhancement of any other person's
rights under or result in the creation of any Lien upon any of the
Acquired Assets or businesses pursuant to (i) the certificate of
incorporation, as amended, or by-laws of Assignor or any of its
Affiliates or any shareholders' agreement that directly or indirectly
is of relevance to the operation of Assignor, (ii) any Material
Contract or Assumed Contract or (iii) any indenture, mortgage, deed
of trust, license, permit, approval, consent, franchise, lease or
other Contract to which Assignor is a party or by which
Assignor or any of Assignor's assets is bound (in all of the
foregoing cases whether with or without notice, lapse of time, or
both, or the happening or the occurrence of any other event).
4.4. Contracts and Commitments. Section 4.4 of the
Disclosure Schedule lists each of the following agreements,
understandings, arrangements or commitments ("Contracts"), to
the extent such Contract relates to any Acquired Asset:
(a) All Contracts between Assignor and any Affiliate(s)
of any Insider or any member of any Insider's family;
(b) All purchase orders and contracts of Assignor
outstanding as of the date of this Agreement;
(c) All Contracts relating to research and development
conducted or to be conducted by or on behalf of Assignor, including
clinical trial and testing Contracts;
(d) All Contracts pursuant to which Assignor licenses or
has otherwise obtained from another person any right to use any of the
Subject IP and all Contracts pursuant to which Assignor has licensed
or otherwise assigned or transferred or agreed to license, assign or
transfer to another person any right to any of the Subject IP;
(e) All confidentiality and nondisclosure Contracts,
assignment of rights or inventions Contracts and non-competition
Contracts and covenants under which Assignor or, any Assignor
Affiliate that has been, is or will be engaged in the Exploitation of
any Acquired Asset, is obligated and any Contract restricting Assignor
or any Assignor Affiliate from Exploiting any Acquired Asset anywhere
in the world;
(f) All Contracts relating to Liens on the Acquired Assets;
(g) All loan Contracts or other Contracts relating to debt
obligations for borrowed money, all guarantees of or Contracts to
acquire debt obligations of any person and all Contracts relating to
loans made by Assignor to any person, including all Contracts relating
to Liens intended to secure any such loan, debt obligation or guarantee;
(h) All Contracts relating to the settlement of any
Litigation Matter executed after January 1, 2006 or currently in effect;
and
(i) All other Contracts of Assignor that affect any Acquired
Asset thereof that are not otherwise disclosed herein.
For purposes of this Agreement, each Contract listed in Section 4.4 of
the Disclosure Schedule shall be a "Material Contract." Section 4.4 of
the Disclosure Schedule also sets forth a description of all negotiations
currently in process or contemplated that relate to any Material
Contract.
4.5. Material Contracts; No Default; Assumed Contracts and
Commitments; No Default.
(a) Assignor has delivered to Assignee true, correct and
complete copies of all Material Contracts and all Assumed Contracts.
(b) All Material Contracts and Assumed Contracts are valid
and in full force and effect, enforceable against and by Assignor in
accordance with their respective terms, subject to bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or
similar Law relating to or affecting the rights and remedies of creditors
generally.
(c) All Material Contracts and Assumed Contracts were
entered into by Assignor in the normal, usual and ordinary course of
business and no other party thereto has asserted any right of defense,
setoff or counterclaim with respect to any amount due or becoming due
thereunder to Assignee after the Closing arising from events which
precede the Closing Date.
(d) Assignor is not in default in the performance of any
of its obligations under any Material Contract or Assumed Contract; no
default has occurred which (whether with or without notice, lapse of time,
or both, or the happening or the occurrence of any other event) would
constitute an event of default by Assignor under any Material Contract
or Assumed Contract; no other party thereto is in default under any
Material Contract or Assumed Contract; and there has not occurred any
event or condition which (whether with or without notice, lapse of time,
or both, or the happening or the occurrence of any other event)
constitutes a basis of force majeure or other claim of excusable delay
or nonperformance by any person under any Material Contract or Assumed
Contract. No notice has been received by Assignor claiming any
default by Assignor under any Material Contract or Assumed Contract
or indicating the intention of any other party thereto to amend, modify,
rescind, terminate or default under any Material Contract or Assumed
Contract, and Assignor is not aware of any threat thereof or basis
therefore, and Assignor has not waived any material right under or
with respect to any Material Contract or Assumed Contract.
4.6. Title to the Acquired Assets. Assignor has the full
right to sell, transfer, and assign all of the Acquired Assets to
Assignee, a nd has good and marketable title thereto, free and clear
of all Liens. Following the Closing, Assignee will be the lawful owner
of, and have good title to, the Acquired Assets, free and clear of
all Liens. None of the Acquired Assets is in the possession, custody
or control of any person other than Assignor.
4.7. Matters Relating to the Acquired Assets.
(a) Section 4.7(a) of the Disclosure Schedule provides
a true, correct and complete list of the following (the "Product Data"):
(i) All locations at which Acquired Assets are located as of
the Closing Date (including locations owned or controlled by third
parties); and
(ii) A purchase item file, including names and addresses of
all suppliers and subcontractors for all items currently used in
connection with any Acquired Asset.
(b) No officer, director, employee or stockholder of
Assignor has any proprietary interest in a Bioprocessing product,
system, method or process constituting an Acquired Asset.
4.8. Litigation; Other Claims. Section 4.8 of the
Disclosure Schedule provides a true, correct and complete list and
brief description of all pending, resolved, or threatened
Litigation Matters.
4.9. Licenses and Permits; Regulatory Filings; Legal
Compliance.
(a) Section 4.9(a) of the Disclosure Schedule provides
a true, correct and complete list of:
(i) all licenses, permits, orders, franchises, certificates,
and other governmental authorizations, consents, rights, concurrences,
registrations and approvals issued by any Governmental Authority that
are specifically related to any Acquired Asset (collectively,
the "Permits"); and
(ii) to the extent not listed pursuant to Section 4.9(a)(i), all
Regulatory Correspondence of Assignor related to the Acquired Assets.
(b) All the Permits are valid and in full force and effect
and all information submitted to the applicable Governmental Authority in
order to obtain each such Permit was true, accurate and complete when
submitted, and there is no impediment to any renewal thereof. Assignor
and its Affiliates are in compliance with the respective requirements,
conditions and provisions of all Permits and neither Assignor, nor any
Assignor Affiliate has been informed by any Governmental Authority or
any lawyer or consultant of Assignor or any Assignor Affiliate of any
deficiency with respect to any Permit. No proceeding is pending or, to
the Knowledge of Assignor or any Assignor Affiliate, threatened to revoke
or amend any of such Permits nor are there facts or circumstances of which
Assignor or any Assignor Affiliate is aware which form a basis upon which
a Governmental Authority reasonably could seek to revoke or amend any
Permit. The execution and delivery of this Agreement and the consummation
of the transactions contemplated by this Agreement will not result in a
modification, impairment, revocation, suspension or limitation of any
Permit. No Permit by its terms requires the consent of its issuing
authority in order to remain in full force and effect after the execution
and delivery of this Agreement or the consummation of the transactions
contemplated by this Agreement.
4.10. Conduct of Business in Compliance with Regulatory
Requirements; Warranties.
(a) Assignor is in compliance with all Law applicable to
any Acquired Asset or the Exploitation of any Acquired Asset. Since
January 1, 2006, neither Assignor, nor any Assignor Affiliate has
been restrained in the Exploitation of any Acquired Asset or Assignor
Product.
(b) Neither Assignor nor any Assignor Affiliate has made
any false statement in, or material omission from, the applications,
approvals, reports, or other submissions to the United States Patent
Office, foreign patent office or other Governmental Authorities.
(c) Since January 1, 2006, neither Assignor, nor any
Assignor Affiliate has made any false statement in, or material
omission from, any report, study or other documentation prepared in
conjunction with the applications, approvals, reports, or records
submitted to or prepared for the United States Patent Office,
foreign patent office or other Governmental Authorities relating to
any Acquired Asset.
(d) Neither Assignor nor any Assignor Affiliate has made
or offered any payment, gratuity, or other thing of value that is
prohibited by any Law to personnel of the United States Patent
Office, foreign patent office or other Governmental Authorities in
connection with the approval of any patent application related to
an Acquired Asset.
4.11. Subject IP.
(a) Issued Patents and Patent Applications. Neither
Assignor nor any Assignor Affiliate owns or otherwise holds any
ownership interest in any issued patents or Patent Rights included
in the Subject Patent Rights other than the license rights set forth
in the Subject License and Subject Sublicenses. Section 4.11(a) of
the Disclosure Schedule provides a true, complete and correct list
of all patents, applications for such patents, within the Subject
Patent Rights, including the title, filing date, serial number and
respective patent number.
(b) Title and Transfer. Pursuant to this Agreement, at
the Closing, Assignor will transfer to Assignee all of its right,
title and interest in and to all Subject IP, free and clear of all
Liens. Except pursuant to the Subject Sublicenses included in the
Acquired Assets: Assignor has not granted to any person any license,
option or other rights to Exploit any Subject IP, including any
Bioprocessing product, method or systems, whether requiring the payment
of royalties or not; Assignor is not obligated to grant to any other
person any license, option or other rights to Exploit any Subject IP,
including any Bioprocessing product, method, systems or items, whether
requiring the payment of royalties or not, and is not obligated (now or
in the future) to make any payments to any third person with respect to
any Subject IP, Subject Patent Right or other Acquired Asset whether
by way of royalties, fees or otherwise (except pursuant to the Subject
License and Subject Sublicenses and for maintenance and renewal fees
payable to Governmental Authorities).
(c) Validity; Patentability. Except as set forth in
Section 4.11(c) of the Disclosure Schedule, there is no pending or, to
the Knowledge of Assignor, threatened Litigation Matter (and Assignor
has received no notice) (i) contesting the patentability, validity,
enforceability, ownership or right to use, assign, license or dispose
of any intellectual property right included in the Subject IP, or (ii)
asserting that any Subject IP or Subject Patent Right (or the
Exploitation of any Subject IP or Subject Patent Right or other
Acquired Asset) conflicts or will conflict with the intellectual
property rights of any other person. Assignor has received no
legal opinion (written or oral) from an attorney or patent agent
regarding the Subject IP that has not been disclosed to Assignee.
(d) Misappropriation; Non-Infringement. Assignor has not
misappropriated any patent, invention, process, method, compound, design,
formula or other proprietary or intellectual property rights of any third
person that are incorporated in the Subject IP or in any way relate to
Bioprocessing. The practice of the Subject IP, in the manner practiced
by or on behalf of Assignor in the Exploitation of any Bioprocessing
item does not infringe or otherwise violate any proprietary or
intellectual property right of any third person. There are no rights
owned by Assignor or Assignor Affiliate or any other person that would
prevent the Exploitation by Assignee of the Subject IP, or any other
Acquired Asset within its terms. Assignor has received no notice of
any infringement or alleged infringement relating to the Subject IP or
the Acquired Assets and, to the Knowledge of Assignor, there is no
threat thereof or basis therefor.
(e) No Conflict. The execution, delivery and performance
by Assignor of this Agreement and the other Related Documents to which
it is a party and the consummation of the transactions contemplated
hereby and thereby do not and will not (whether with or without notice,
lapse of time, or both, or the happening or the occurrence of any other
event): constitute a breach of or result in a modification of any
Contract to which Assignor is a party or relating to any Subject IP,
Subject License or Subject Sublicense, or cause the (or give rise to a
right of) forfeiture or termination of any Subject IP, Subject License
or Subject Sublicense or impair the right of Assignor or Assignee to
Exploit any Bioprocessing item, any Subject IP, Subject License
or Subject Sublicense.
(f) Sufficiency. The Subject IP, Subject License and
Subject Sublicenses constitute all intellectual property rights used by,
owned by or licensed to (or otherwise available to) Assignor or any
Assignor Affiliate that are or have been used or held for use in
Bioprocessing through the Exploitation of the Acquired Assets. Assignor
does not have knowledge of any intellectual property rights (other
than the Subject IP, Subject License and Subject Sublicenses) that are
used or reasonably necessary for the Exploitation of the Acquired Assets.
(g) Trade Secrets. Except as permitted by the Subject
License and Subject Sublicenses included in the Acquired Assets, Assignor
is the sole owner of all Trade Secrets, free and clear of all Liens.
Assignor has not misappropriated any of the Trade Secrets. Neither
Assignor nor any Assignor Affiliate, nor to Assignor?s Knowledge, any
other person, has taken or omitted to take any action that has made or
may make the Trade Secrets part of public knowledge or literature, or
used, divulged, or appropriated the Trade Secrets for the benefit of
any person other than Assignor or to the detriment of Assignor.
Assignor has taken reasonable steps to protect the confidentiality of
all Trade Secrets, including entering into confidentiality and
assignment agreements with all Assignor Affiliates having access to
Confidential Information relating to any Acquired Asset and prohibiting
them from disclosing such information or using the same for their own
benefit, for the benefit of any person other than Assignor or to the
detriment of Assignor. To the Knowledge of Assignor, no person is in
breach of any such confidentiality and assignment agreement in any
respect that could negatively affect the Subject IP, Subject License
or Subject Sublicenses or Assignor's or Assignee's rights therein.
(h) Insiders and Assignor Affiliates. No part of the
Subject IP is owned by, licensed from or licensed to any Insider or any
Assignor Affiliate.
4.12. Financial Statements. Assignor has delivered to Assignee
unaudited balance sheets of Seller as at September 30, 2010 and
September 30, 2011 and the unaudited statements of operations for the
12 month periods ended September 30, 2010 and September 30, 2011 and
the three month periods ended September 30, 2010 and September 30, 2011,
including in each case the notes thereto certified by Assignor's chief
financial officer. The note to the September 30, 2011 Balance Sheet
includes a note itemizing the individuals amounts of receivables and of
payables as of September 30, 2011. Such financial statements fairly
present the financial condition and the results of operations, of
Assignor as at the respective dates of and for the periods referred to
in such financial statements, all in accordance with GAAP. The financial
statements referred to in this Section 4.12 reflect the consistent
application of such accounting principles throughout the periods involved,
except as disclosed in the notes to such financial statements. Since
September 30, 2011, there has not been any change in the assets,
liabilities, financial condition or operating results of Assignor from
that reflected in the financial statements referred to in this Section
4.12, except changes in the ordinary course of business that have not
caused, in the aggregate, a material adverse effect on the financial
condition, business, operations or prospects of Assignor.
4.13. Environmental Matters. Assignor is in compliance with
applicable Environmental Law.
4.14. Absence of Certain Liabilities. Assignor has no
liabilities of any nature (matured or unmatured, accrued, fixed or
contingent), which have had or have a reasonable probability of having
a Material Adverse Effect.
4.15. Investment Representations. Assignor is an "accredited
investor" as such term is defined in Rule 501 of Regulation D promulgated
under the Securities Act of 1933, as amended (the "Securities Act").
Assignor is acquiring the Shares for its own account and has and will
have on the Closing Date no current arrangements or understandings for
the resale or distribution to others and will only resell the Shares or
any part thereof pursuant to an effective registration statement or an
available exemption under applicable Law. The Assignor does not presently
have any contract, undertaking, agreement or arrangement with any person
or entity to sell, transfer or grant participation to such person or
entity or to any third person or entity with respect to any of the Shares
or interest in any of the foregoing securities. The Assignor
acknowledges that the offer and sale of the Shares have not been
registered under the Securities Act or the securities Laws of any state
or other jurisdiction, and that the Shares are being offered and sold
pursuant to an exemption from registration contained in the Securities
Act, the availability of which depends upon, among other things, the
bona fide nature of the investment intent and the accuracy of the
Assignor's representations as expressed herein or otherwise made
pursuant hereto, and the Shares cannot be disposed of unless they are
subsequently registered under the Securities Act and applicable state
laws or an exemption from such registration is available. The Assignor
understands and agrees that the Shares will bear a legend substantially
similar to the legend set forth below in addition to any other legend
that may be required by applicable Law, the Certificate of Incorporation
or Bylaws of SI, as the same may be amended from time to time, the
Escrow Agreement or by any other agreement between SI and Assignor:
"THE SHARES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
LAWS AND MAY NOT BE TRANSFERRED, SOLD,
PLEDGED OR HYPOTHECATED EXCEPT (A) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND
APPLICABLE STATE SECURITIES LAWS, OR (B) THE
COMPANY RECEIVES AN OPINION OF COUNSEL OR
OTHER EVIDENCE REASONABLY SATISFACTORY TO
THE COMPANY AND ITS COUNSEL THAT THE PROPOSED
TRANSACTION IS EXEMPT FROM REGISTRATION UNDER
THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS."
4.16. Brokerage. There has been no intermediary or broker in
negotiations or discussions incident to the execution of this Agreement
or any of the transactions contemplated hereby on behalf of Assignor or
any Assignor Affiliate. Assignee shall not be responsible for, and
Assignor hereby indemnifies Assignee and SI against, any commission or
other
compensation due or becoming due with respect to any such
transactions as a result of the engagement of any such person by
Assignor or any Assignor Affiliate.
4.17. Disclosure. The representations and warranties
contained in this Section 4, when considered as a whole, do not
contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements and
information contained in this Section 4 not misleading.
5. Representations and Warranties of Assignee and SI. As a
material inducement to Assignor to enter into this Agreement and each
of the other Related Documents to which it is a party, Assignee and
SI hereby severally represent and warrant to Assignor that the following
statements are true and correct as of the date of this Agreement:
5.1. Due Organization. Each of Assignee or SI is a corporation
duly organized, validly existing and in good standing under the laws of
Delaware. Each has corporate power to own its properties and to conduct
its businesses as currently owned and conducted and to execute, deliver
and perform this Agreement.
5.2. Authorization; Binding Obligations. Each of Assignee
and SI has the full legal right, power and authority to enter into and
perform the transactions contemplated by this Agreement and the other
Related Documents to which it is a party, without need for any
registration, qualification, consent, approval, authorization, license
or order of, or notice to or filing with any Governmental Authority or
other person. The execution, delivery and performance by Assignee and
SI of this Agreement and the other Related Documents to which it is a
party and the consummation by Assignee and SI of the transactions
contemplated hereby and thereby have been duly and validly authorized
and approved by all necessary corporate action of Assignee and SI.
This Agreement and the other Related Documents to which Assignee or SI
is a party evidence the legal, valid and binding obligations of such
party, enforceable against it in accordance with their respective
terms, subject to bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar Law relating to or affecting the
rights and remedies of creditors generally. This Agreement and each
other Related Document to which Assignee is a party have been duly and
validly executed and delivered by Assignee. This Agreement and each
other Related Document to which SI is a party have been duly and
validly executed and delivered by SI.
5.3. No Default or Violation. The execution, delivery and
performance by Assignee and SI of this Agreement and the other Related
Documents to which it is a party and the consummation by Assignee and
SI of the transactions contemplated hereby and thereby do not, and
will not (whether with or without notice, lapse of time, or both, or
the happening or the occurrence of any other event), conflict with any
provision of the certificate of incorporation or bylaws of Assignee or
of SI, and do not, and will not (whether with or without notice, lapse
of time, or both, or the happening or the occurrence of any other event),
violate any Law to which Assignee or SI or any of its properties is
subject.
5.4. Securities Filings. Assignee has filed all forms,
reports, statements and documents required to be filed with the
Securities and Exchange Commission (the "SEC") since June 30, 2008,
each of which has complied in all material respects with the applicable
requirements of the Securities Act and the Securities Exchange Act of
1934, as amended, each as in effect on the date so filed (collectively,
the "SEC Filed Documents". The SEC Filed Documents are available on
the SEC's website at xxx.xxx.xxx. As of their respective dates, or
as of the date of the last amendment thereof, if amended after filing,
none of the SEC Filed Documents contained a material fact or omitted
or to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading.
5.5. Brokerage. There has been no intermediary or broker in
negotiations or discussions incident to the execution of this Agreement
or any of the transactions contemplated hereby on behalf of Assignee or
SI. Assignor shall not be responsible for, and Assignee and SI hereby
indemnify Assignor against, any commission or other compensation due
or becoming due with respect to any such transactions as a result of
the engagement of any such person by Assignee or SI.
5.6. Valid Issuance of Shares. The Shares, when issued, sold
and delivered in accordance with the terms and for the consideration
set forth in this Agreement, will be validly issued, fully paid and
nonassessable and free of restrictions on transfer other than
restrictions on transfer under the Escrow Agreement and applicable
state and federal securities laws and liens or encumbrances created by
or imposed by Assignor. Assuming the accuracy of the representations
and warranties of Assignor contained in Section 4.15 of this Agreement,
the offer, sale and issuance of the Shares will be exempt from the
registration requirements of the Securities Act of 1933, as amended
(the "Securities Act").
6. Conditions Precedent to Closing
6.1. Conditions to Each Party's Obligations under this
Agreement. The respective obligations of each Party under this
Agreement shall be subject to the fulfillment as of the Closing of
the following conditions:
(a) Injunctions. No Party hereto shall be subject to
any order, decree or injunction of a court or agency of competent
jurisdiction which enjoins or prohibits the consummation of any of the
transactions contemplated by this Agreement and the other Related
Documents;
(b) Approvals and Authorizations. All necessary
registrations, qualifications, consents, approvals, authorizations,
licenses or orders of all Governmental Authorities required to consummate
the transactions contemplated by this Agreement and the other Related
Documents shall have been obtained and shall remain in full force and
effect and all waiting periods relating to such registrations,
qualifications, consents, approvals, authorizations, licenses or orders
shall have expired; and
(c) Litigation. There shall not be any pending or
threatened Litigation Matter that shall seek to restrain, prohibit or
invalidate any of the transactions contemplated by this Agreement and
the other Related Documents.
6.2. Conditions to Obligations of Assignee and SI. The
obligations of Assignee and SI to complete the transactions to be
consummated at the Closing are subject to the satisfaction as of the
Closing of all of the following conditions (or the waiver thereof by
Assignee and SI):
(a) Each of the representations and warranties of Assignor
in this Agreement shall be true and correct as of the Closing Date
(except to the extent such representations and warranties speak as of
an earlier date, with respect to which such representations and warranties
shall be true and correct as of such earlier date);
(b) Assignor shall have duly complied with and performed
all of the terms, covenants and conditions of this Agreement to be
complied with or performed by Assignor at or before the Closing;
(c) Assignor shall have amended its certificate of
incorporation to change its name to "BioDox R&D Corporation";
(d) Assignor shall have executed and delivered to Assignee,
a Research and Development Agreement in the form of Exhibit C hereto
(the "R&D Agreement") to provide research and development services on
behalf of Assignee with respect to Bioprocessing and the Acquired Assets;
(e) Xx. Xxxxxxx, Xx. Xxxxxxxxx and Xx. Xxxxxx Xxx shall
have executed and delivered to SI and the Assignee Non-Competition
Agreements in the form of Exhibit D with respect to Xx. Xxxxxxx and
Exhibit D-1 with respect to Drs. Alexander and Xxx hereto.
(f) This Agreement and the R&D Agreement shall have been
approved by the Board of Directors of Assignor and the owners of at
least 66 2/3 % of the outstanding shares of each class of capital stock
of Assignor.
(g) Assignor shall have delivered to Assignee and SI, the
written consents of UMBC and each of the Subject Sublicensees (other
than SI) to the assignment of the related license and sublicenses to the
Assignee provided herein.
(h) Assignee and SI shall have received the opinion of
Xxxxxx LLP, counsel to Assignor, dated as of the Closing Date,
substantially in the form set forth in Exhibit E to this Agreement;
(i) Assignor shall have executed and delivered to Assignee
such bills of sale and other instruments of transfer and assignment,
including license assignments in recordable form, and such other
documents (including any consents thereto by third parties necessary to
make the same valid and effective), in such form and containing such
terms and provisions as Assignee may reasonably request, as shall be
necessary to vest in Assignee all right, title and interest in and to
the Acquired Assets free and clear of any and all Liens other than the
Assumed Liabilities;
(j) There shall not be any pending or threatened Litigation
Matter that shall affect the right of Assignee to own, use or control
any Acquired Asset or Assignee's title therein after the Closing Date;
(k) There shall not have been any Material Adverse Effect
(whether or not covered by insurance) nor shall Assignor have suffered
the loss or expiration of any License or Sublicense, Permit or any
material adverse change to any Assumed Contract;
(l) Assignor shall have obtained and filed releases with
respect to all Liens of record with respect to the Acquired Assets;
(m) Assignor shall have executed and delivered to Assignee
each of the Related Documents to which it is a party;
(n) Assignee shall have received from Assignor a
certificate, dated as of the Closing Date, executed by the Secretary of
Assignor, certifying the incumbency of each person executing this
Agreement or any other Related Document on behalf of Assignor, and the
authenticity of the Board of Directors and stockholder resolutions
authorizing the transactions contemplated by this Agreement and the
other Related Documents to which Assignor is a party.
(o) SI shall have received a copy of the Amendment to the
Articles of Organization of Assignor changing its name to BioDox R&D
Corporation, certified by the Secretary of the Commonwealth of
Massachusetts.
(p) Assignee shall have received from Assignor a
certificate, dated as of the Closing Date, executed by the President
of Assignor, certifying that the conditions specified in the preceding
clauses of this Section 6.2 have been fulfilled; and
6.3. Conditions to Obligations of Assignor. The obligations
of Assignor to complete the transactions to be consummated at the
Closing are subject to the satisfaction as of the Closing of all of
the following conditions (or the waiver thereof by Assignor):
(a) Each of the representations and warranties of
Assignee and SI in this Agreement shall be true and correct as of the
Closing Date (except to the extent such representations and warranties
speak as of an earlier date, with respect to which such representations
and warranties shall be true and correct as of such earlier date);
(b) Assignee and SI shall have duly complied with and
performed all of the terms, covenants and conditions of this Agreement
to be complied with or performed by Assignee and SI at or before the
Closing;
(c) Assignee shall have executed and delivered to Assignor
the R&D Agreement.
(d) Assignee and SI shall have executed and delivered to
Assignor each of the other Related Documents to which it is a party;
(e) Assignor shall have received from Assignee a
certificate, dated as of the Closing Date, executed by an officer of
Assignee, certifying that the conditions specified in the preceding
clauses of this Section 6.3 have been fulfilled;
(f) Assignor shall have received from Assignee and from SI
a certificate, dated as of the Closing Date, executed by its respective
Secretary or Assistant Secretary, certifying the
incumbency, respectively, of each officer of Assignee and of SI
executing this Agreement or any other Related Document to which
Assignee or SI is a party, and the authenticity of the resolutions
authorizing the transactions contemplated by this Agreement and the
other Related Documents to which Assignee or SI is a party; and
(g) Assignor shall receive the portion of the Purchase
Price payable or issuable to it at Closing.
7. Post-Closing Matters
7.1. Covenant of Further Assurances
(a) Assignor shall, at any time and from time to time
after the Closing Date, upon the reasonable request of Assignee, execute,
acknowledge, seal and deliver all such instruments and documents, and
do all such further things, as Assignee may reasonably request to perfect
the transfer of any and all of the Acquired Assets that are to be sold,
transferred and assigned to Assignee under this Agreement or any of the
other Related Documents (including taking any actions necessary to assure
Assignor's proper corporate authorization with respect to the transactions
contemplated by this Agreement and the other Related Documents) and to
deliver or cause to be delivered such Acquired Assets to Assignee in
accordance with the terms of this Agreement and the other Related
Documents. In addition, Assignor shall use commercially reasonable
efforts to obtain for Assignee all such consents, licenses, permits and
approvals as may be required for Assignor to perform its obligations
under this Agreement or under the other Related Documents or as are
necessary or desirable to accomplish the purchase and sale of the
Acquired Assets or to enable Assignee to fully Exploit any Acquired
Asset, and to provide to Assignee any records or other data relating to
any Acquired Asset which were not previously delivered to Assignee.
(b) Assignor, Assignee and SI shall do or procure to be
done all such further acts and things, and execute or procure the
execution of all such other documents, as such Party may from time to
time reasonably require, whether on or after the Closing, for the purpose
of giving to such other Party or Parties the full benefit of all of the
provisions of this Agreement and the other Related Documents.
7.2. Payment of Taxes. Assignor shall pay, promptly and when
due, whether at the original time fixed therefor or pursuant to any
extension of time to pay, any and all Taxes that shall become due or
shall have accrued on account of Assignor's ownership of the Acquired
Assets, Taxes arising from gains realized by Assignor resulting from
any of the transactions contemplated by this Agreement, and Taxes related
to the transfer of the Acquired Assets to Assignee.
7.3. Defense of Claims and Litigation. At all times from and
after the Closing Date, and without charge except for reimbursement of
out-of-pocket expenses, each Party shall consult, confer and cooperate
in good faith on a reasonable basis with the other Parties (including
the making available of witnesses and cooperation in discovery
proceedings) in the conduct or defense of any Litigation Matter
against such other Party or Parties or any of its Affiliates by
any third person that relates to any Acquired Asset or any Assumed
Liability or any matter that,
directly or indirectly, arises therefrom, whether known at the
Closing Date or arising thereafter. The foregoing notwithstanding, to
the extent the indemnification provisions of this Agreement or the
provisions of the R&D Agreement apply to any such conduct or defense,
they shall control as to the payment of costs and expenses.
7.4. Retention of Records. Assignor agrees to retain and
cause its Affiliates to retain, any material books, records, documents,
instruments, accounts, financial information, Tax information, production
records, employment records, correspondence, writings, evidences of
title and other papers or information (i) relating to the Acquired Assets
as Assignor possessed or controlled immediately before the Closing and
did not transfer to Assignee hereunder and (ii) relating to the
performance by Assignor of its obligations under this Agreement and the
other Related Documents for seven (7) years following Closing Date or
for such longer period as may be required by any Law applicable to
Assignee or any of its Affiliates and, in any event, to notify
Assignee prior to the destruction of any of such materials and, upon
the request of Assignee, to turn over to Assignee any of such materials.
7.5. Sharing of Data. Assignee shall have the right for a
period of seven (7) years following the Closing Date to have reasonable
access to such material books, records, documents, instruments, accounts,
financial information, Tax information, production records, employment
records, correspondence, writings, evidences of title, and other papers
or information to the extent that they relate to (i) the Acquired
Assets or (ii) the performance by Assignor of its obligations under this
Agreement or the other Related Documents for the limited purposes of
complying with applicable Law and defending against a claim or
litigation relating to any Acquired Asset. Such access will be subject
to the confidentiality obligations of this Agreement.
7.6. Confidentiality.
(a) Obligation. Until the date which is seven (7) years
following Closing Date (or, with respect to Trade Secrets, indefinitely),
Assignor shall, and shall secure the agreement of its Affiliates, to,
keep confidential and not disclose to any third person or use, any
Confidential Information relating to any Acquired Asset, including, by
way of example, any aspect of any Subject IP, Subject License or Subject
Sublicense that has not previously been made public and any vendor lists,
specifications, formulae, know-how, or other proprietary data.
(b) Exceptions. Assignor may disclose Confidential
Information to the extent such disclosure is reasonably necessary to
prosecute or defend litigation, to comply with applicable Law, to obtain
necessary or desirable regulatory approvals, to respond to a valid order
of a Governmental Authority, provided that, other than with respect to
disclosure for protecting intellectual property rights in which such
disclosure is required by applicable Law, Assignor shall (i) use
reasonable efforts to secure confidential treatment of such Confidential
Information required to be disclosed, and (ii) unless precluded by
applicable Law from doing so, give advance notice to Assignee and SI
sufficiently in advance of the proposed disclosure so as to permit
Assignee or SI to have the opportunity to object to such disclosure or
otherwise protect its Confidential Information.
8. Non-Competition Covenant.
(a) Until a date five years from the Closing Date, Assignor
agrees not to, and shall secure the agreements of Assignor Affiliates not
to, directly or indirectly, participate or engage in the following
activities or businesses within the United States of America, South
America, Europe or Asia ("Competitive Activities"): (i) developing or
providing products or services which compete with the Bioprocessing
Business of the Assignee or of SI; (ii) soliciting, or endeavoring to
entice away, any person or entity who is or was a customer of SI or any
other subsidiary of SI, including Assignee (collectively, a "Protected
Entity") or encouraging any such person or entity to use any products or
services which compete with the Bioprocessing Business if offered by
anyone other than a Protected Entity; (iii) assisting any person or
entity in any way to do, or attempt to do, anything prohibited by
clauses (i) or (ii) above and (iv) directly or indirectly soliciting,
recruiting or hiring any person employed by a Protected Entity.
(b) Notwithstanding anything to the contrary contained in
this Section 1, the foregoing covenant in Section 8(a) shall not be
deemed breached as a result of the ownership by the Assignor and
Assignor Affiliate of less than an aggregate of (i) three percent (3%)
of any class of stock of an entity engaged in Competitive Activities;
provided, that such stock is listed on a national securities exchange
or is quoted on the National Market System of the Nasdaq Stock Market
or (ii) two percent (2%) in value of any instrument of indebtedness of
an entity engaged in Competitive Activities.
9. Indemnification Provisions
9.1. Indemnification.
(a) Assignee's and SI's Indemnification Obligations. On
and after the Closing Date, Assignee and SI by this Agreement agree to
indemnify, defend and hold harmless Assignor and each of its Affiliates,
and each of their respective directors, officers, employees, agents,
successors and assigns (collectively, the "Assignor Indemnified Parties")
from and against and in respect of any and all claims, losses, damages,
costs, expenses, obligations, liabilities, charges, actions, suits,
proceedings, deficiencies, interest, penalties and fines (including
costs of collection, attorney?s fees and other costs of defense, costs
of enforcing indemnification provisions, and expenses of investigation)
(collectively, "Damages") imposed on, sustained, incurred or suffered by
or asserted against any of them, as and when the same are incurred by
any Assignor Indemnified Party, directly or indirectly, in respect of,
but only in respect of:
(i) any breach of Assignee's or SI's representations and
warranties contained herein or in any certificate delivered by Assignee
or SI pursuant to the terms of this Agreement;
(ii) Assignee's or SI's failure to perform or otherwise fulfill
any of its agreements, covenants, obligations or undertakings under this
Agreement; and
(iii) the Assumed Liabilities.
Assignee and SI shall not be responsible for any Damages to the extent
that such Damages are due to the negligence or willful misconduct of
Assignor or an Assignor Affiliate.
(b) Assignor's Indemnification Obligations. On and after the
Closing Date, Assignor by this Agreement agrees to indemnify, defend
and hold harmless Assignee and SI and each of their respective Affiliates,
and their respective directors, officers, employees, agents, successors
and assigns (collectively, the "Assignee Indemnified Parties"), from and
against and in respect of any and all Damages imposed on, sustained,
incurred or suffered by or asserted against any of them, as and when the
same are incurred by any Assignee Indemnified Party, directly or
indirectly, but only in respect of:
(i) any breach of Assignor's or SI's representations and
warranties contained herein or in any certificate delivered by Assignor
pursuant to the terms of this Agreement;
(ii) Assignor's failure to perform or otherwise fulfill any
of its agreements, covenants, obligations or undertakings under this
Agreement;
(iii) all claims alleging that the Exploitation of any Acquired
Asset as such Acquired Asset exists as of the Closing Date infringes any
intellectual property right of a third party;
(iv) all Excluded Liabilities (which term includes all
Assignor-Related Claims);
(v) all claims, actions or proceedings, or threatened claims,
actions or proceedings, relating to or arising from any of the transactions
contemplated by this Agreement that may be brought or made by any person
having contractual or business relations with Assignor on or before the
expiration or termination of the R&D Agreement; and
(vi) all claims, actions or proceedings, or threatened claims,
actions or proceedings, relating to or arising from Assignee not properly
acquiring ownership of any of the Acquired Assets.
Assignor shall not be responsible for any Damages to the extent that such
Damages are due to the gross negligence or willful misconduct of Assignee
or SI.
9.2. Indemnification Procedure.
(a) Claims Notice. Whenever any claim shall arise for
indemnification under this Agreement (an "Indemnification Claim"), the
person seeking indemnification (the "Indemnified Party") shall promptly
notify the Party from whom indemnification is sought (the "Indemnifying
Party") in writing of the Indemnification Claim ("Claim Notice"), which
Claim Notice shall set forth such Indemnification Claim in reasonable
detail. In the event of any such Indemnification Claim resulting from
or in connection with any claim, demand or legal proceedings by a third
party (a "Third-Party Claim"), the Claim Notice to the Indemnifying
Party shall specify, if known, the amount or an estimate of the amount
of the Damages arising therefrom. The failure of the Indemnified Party
to give the Indemnifying Party prompt notice as provided herein shall
not relieve the Indemnifying Party of any of its obligations under this
Section 9, except to the extent that the Indemnifying Party is materially
prejudiced by such failure.
(b) Conflicts Between the Parties. If the Claim Notice
does not involve a Third-Party Claim, and if the Indemnifying Party
objects in writing within ten (10) business days of its receipt of the
Claim Notice to any indemnity in respect of any such Claim Notice, then
the Indemnifying Party and the Indemnified Party sending such Claim
Notice shall attempt in good faith to agree upon the rights of the
respective parties with respect to the Indemnification Claim to which
the Claim Notice relates. If the Indemnifying Party and the Indemnified
Party so agree, the Indemnifying Party shall promptly make the
agreed-upon payment.
(c) Third-Party Claims. The Indemnifying Party shall
have thirty (30) days after receipt of the Claim Notice with respect to
a Third-Party Claim to assume the conduct and control of the settlement
or defense of such the Third-Party Claim, through counsel of its own
choosing (but reasonably satisfactory to the Indemnified Party) and at
the Indemnifying Party's own expense, and the Indemnified Party shall
cooperate with it in connection therewith; provided, that the Indemnified
Party may participate in such settlement or defense through counsel
chosen by such Indemnified Party and the fees and expenses of such
counsel shall be borne by such Indemnified Party with no right to
indemnification therefor unless (i) the employment thereof has been
specifically authorized by the Indemnifying Party in writing, (ii)
the Indemnified Party reasonably concludes (based on the advice of
counsel) that there exists a conflict of interest between the
interests of the Indemnified Party and the Indemnifying Party, or
(iii) the Indemnifying Party has after a reasonable time failed to
employ counsel to assume or to continue to maintain such defense, in
each of which events the Indemnified Party may retain counsel which
shall be reasonably satisfactory to the Indemnifying Party, and the
Indemnifying Party shall pay the reasonable fees and expenses of such
counsel for the Indemnified Party (but in no event shall the
Indemnifying Party be obligated to pay fees and expenses of more than
one firm for all Indemnified Parties). Except as otherwise provided
in this Section 9.2(c), so long as the Indemnifying Party is
reasonably contesting any such Third-Party Claim in good faith, the
Indemnifying Party shall have the exclusive right to conduct and
control the defense of the Third-Party Claim and the Indemnified
Party shall not pay or settle any such Third-Party Claim without the
consent of the Indemnifying Party. If the Indemnifying Party does
not notify the Indemnified Party within thirty (30) days after the
receipt of the Indemnified Party's Claim Notice with respect to a
Third-Party Claim that it elects to undertake the defense thereof
(or does not fulfill its commitment to undertake such defense), the
Indemnified Party shall have the right to contest, settle or
compromise the Third-Party Claim but shall not thereby waive any
right to indemnity therefor pursuant to this Agreement. The
Indemnifying Party shall not, except with the written consent of
the Indemnified Party, consent to the entry of any judgment or
enter into any settlement that does not include as an unconditional
term thereof the giving by the person asserting such Third-Party
Claim of an unconditional release from all liability with respect to
such Third-Party Claim to all Indemnified Parties (i.e., Assignor
Indemnified Parties or Assignee Indemnified Parties, as the case
may be).
(d) Third Party Beneficiaries. The Assignee Indemnified
Parties and Assignor Indemnified Parties are intended to be third party
beneficiaries of the rights granted under this Section 9.2 and to have
the right to enforce such rights directly against the applicable
Indemnifying Party.
9.3. Survival of Representation and Warranties.
Notwithstanding any investigation conducted before or after the Closing,
and notwithstanding any knowledge or notice of any fact or circumstance
that either Assignor on one hand or Assignee or SI on the other hand
may have as the result of such investigation or otherwise, the
representations and warranties shall survive the Closing indefinitely.
10. Miscellaneous.
10.1. Waivers and Amendments.
(a) This Agreement may be amended, modified or
supplemented only by a written instrument executed by the Parties hereto.
(b) No waiver of any provision of this Agreement, or consent
to any departure from the terms of this Agreement, shall be effective
unless the same shall be in writing and signed by the Party waiving or
consenting thereto. No failure on the part of any Party to exercise,
and no delay in exercising, any right or remedy under this Agreement
shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or remedy by such Party preclude any other
or further exercise thereof or the exercise of any other right or
remedy. The waiver by any Party hereto of a breach of any provision
of this Agreement shall not operate as a waiver of any subsequent
breach. Except as otherwise specifically provided herein, all rights
and remedies under this Agreement are cumulative and are in addition
to and not exclusive of any other rights and remedies provided by Law.
10.2. Performance. Assignor acknowledges that money damages
alone will not adequately compensate Assignee or SI for Assignor's or
Assignor's Affiliates' breach of Section 7.6 or of Section 8, and,
therefore, agrees that in the event of such breach or threatened breach,
in addition to all other remedies available to Assignee or SI, at law,
in equity or otherwise, Assignee or SI shall be entitled, if warranted,
to an injunction restraining any such breach or threatened breach, or a
decree of specific performance, without posting any bond or security.
The remedy in this Section 10.2 is in addition to, and not in lieu of,
any other rights or remedies Assignee or SI may have.
10.3. Notices. Any notice required or permitted by this
Agreement shall be in writing and shall be (a) delivered personally,
effective on the date of delivery, (b) sent via an internationally
recognized express international courier service, such as Federal
Express or DHL, to be effective three (3) business days following
deposit, or (c) sent by facsimile to be effective on the date of
confirmed transmission, provided that a confirmation copy is sent no
later than the next business day via an internationally recognized
express international courier service, such as Federal Express or DHL.
Notices shall be addressed to the Party concerned at the address
indicated below or at such other address as such Party may subsequently
designate by like notice from time-to-time:
(a) if to Assignor, to:
Fluorometrix Corporation
00 Xxxxxx Xxxx Xxxx
Xxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, President
Telecopier No.: ___________
(b) if to Assignee or SI, to:
00 Xxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, President
Telecopier No.: (000) 000-0000
with a required copy to:
Xxxxxxx Xxxxxx & Xxxxxxxxxx LLC.
000 Xxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxxxxx
Telecopier No.: (000) 000-0000
10.4. Expenses. Each Party hereto shall pay its own expenses
in connection with the transactions contemplated by this Agreement,
whether or not they are completed. In the event of any conflict between
this provision and the indemnification or termination provisions of this
Agreement, the indemnification or termination provisions, as the case may
be, shall control.
10.5. Publicity. Except as required by applicable Law (but
only if the Party affected by such Law shall have given the other Party
or Parties advance written notice of the specific manner in which such
requirements affect or modify the obligations that would otherwise apply
to such Party under this Section 10.5), no Party shall use the name of
the other Parties or any Affiliate of the other Parties in any publicity
or advertising without the prior written approval of the other Parties.
Except as may be required by applicable Law (and subject to the advance
written notice described in the previous sentence), no Party shall
disclose any terms or conditions of this Agreement without the prior
written consent of the other Parties; provided, that SI may, without the
prior consent of Assignor, make such public disclosure as may be required
by Law or regulations of any stock exchange or other Governmental
Authority.
10.6. Entire Agreement. This Agreement (including the
Disclosure Schedule, the Appendices and the Exhibits) and the other
Related Documents constitute the entire agreement between and among the
Parties hereto with respect to the subject matter hereof and thereof and
supersede all prior agreements and understandings, whether written or
oral, between the Parties in connection with such subject matter.
10.7. Governing Law. This Agreement shall be governed by,
and construed and enforced in accordance with, the substantive law of
the State of New York without giving effect to any conflict-of-law
provision. The Parties hereby irrevocably and unconditionally consent
to submit to the exclusive jurisdiction of the state and federal
courts located in New York for any actions, suits or proceedings
arising out of or relating to this Agreement (and each Party agrees
not to commence any action, suit or proceeding relating thereto except
in such courts), and
further agree that service of any process, summons,
notice or document in accordance with Section 10.3 hereof shall be
effective service of process for any action, suit or proceeding brought
against the Parties in any such court. The Parties hereby irrevocably
and unconditionally waive any objection to the laying of venue of any
action, suit or proceeding arising out of this Agreement in the state
and federal courts located in New York, and hereby further irrevocably
and unconditionally waive and agree not to plead or claim in any such
court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum.
10.8. Interpretation. When reference is made in this
Agreement to a Section, such reference shall be to a Section of this
Agreement, unless otherwise indicated. References to Sections include
subsections, which are part of the related Section. The recitals
hereto constitute an integral part of this Agreement. The table of
contents and headings contained in this Agreement are for convenience
of reference only and shall not affect in any way the meaning or
interpretation of this Agreement. The language used in this Agreement
shall be deemed to be the language chosen by the Parties hereto to
express their mutual intent, and no rule of strict construction shall
be applied against any Party. Whenever the context may require, any
pronouns used in this Agreement shall include the corresponding
masculine, feminine or neuter forms, and the singular form of nouns
and pronouns shall include the plural, and vice versa. Any reference
to Law shall be deemed to refer to such Law as such Law may be in
effect from time to time, unless the context requires otherwise.
Whenever the words "include," "includes" or "including"
are used in this Agreement, they shall be deemed to be followed by
the words "without limitation." The term "or" shall have the
inclusive meaning frequently identified with the phrase
"and/or." No summary of this Agreement prepared by any Party shall
affect the meaning or interpretation of this Agreement.
10.9. Modification. It is the intention of the Parties that
this Agreement be enforced in accordance with its specific terms.
However, if it should for some reason be contrary to public policy
to effectuate the intentions of the Parties in interpreting this
Agreement, the Parties have agreed as follows:
(a) In the event that any court to which a dispute
is submitted determines that any provision of this Agreement is
invalid or unenforceable by reason of its extending for too great a
period of time or over too large a geographic area or over too great
a range of activities, the Parties agree that the court shall have
the power to reduce the scope, duration, or geographic area of the
term or provision, to delete specific words or phrases, or to replace
any invalid or unenforceable term or provision with a term or provision
that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision, and
this Agreement shall be enforceable as so modified after the expiration
of the time within which the decision may be appealed.
(b) If the court shall determine that any provision of this
Agreement is invalid, illegal or otherwise unenforceable, the validity,
legality and enforceability of the other provisions of this Agreement
shall not be affected thereby. Any invalid, illegal or unenforceable
provision of this Agreement shall be severable, and after any such
severance, all other provisions of this Agreement shall remain in full
force and effect. In all such cases, the Parties shall use their
reasonable best efforts to substitute a valid, legal and enforceable
provision which, insofar as practicable, implements the original
purposes and intents of this Agreement.
10.10. Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Agreement or affecting the validity or enforceability of such provision
in any other jurisdiction.
10.11. Disclosure Schedule and Exhibits. The Disclosure
Schedule and Exhibits mentioned in this Agreement shall be attached to
this Agreement and shall form an integral part of this Agreement. All
capitalized terms defined in this Agreement which are used in the
Disclosure Schedule or any Exhibit shall, unless the context otherwise
requires, have the same meaning therein as given herein.
10.12. Counterparts and Facsimile Signatures. This Agreement,
the Disclosure Schedule and all Exhibits hereto may be executed in one
or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have
been signed by each Party and delivered to the other Party, it being
understood that all Parties need not sign the same counterpart. Facsimile
execution and delivery of this Agreement, the Disclosure Schedule and any
Exhibits by any of the Parties shall be legal, valid and binding execution
and delivery of such document for all purposes.
10.13. No Assignment by Assignor. This Agreement is personal
to Assignee and SI, and Assignor shall not assign any of its rights or
delegate any of its obligations under this Agreement without the prior
written consent of Assignee and SI, which consent may be withheld
for any reason. Subject to the preceding sentence, this Agreement will
be binding upon, inure to the benefit of and be enforceable by the Parties
and their respective successors and permitted assigns. In addition, the
rights to indemnification set forth in Section 9 shall inure to the benefit
of and be enforceable by each of the indemnitees described therein. All
assignees of this Agreement shall assume the assignor?s obligations under
this Agreement in writing. Without the consent of Assignor, Assignee and
SI may assign their respective rights under this Agreement and delegate
its obligations under this Agreement, in whole or in part, to any person
that shall acquire the Acquired Assets if such person shall assume their
obligations under this Agreement in writing, or the merger or consolidation
of Assignee or SI with or into, any other person. Any attempt to assign
or transfer this Agreement or any portion thereof in violation of this
Section 10.13 shall be void.
10.14. Waiver of Jury Trial. EACH OF ASSIGNOR, ASSIGNEE AND SI
BY THIS AGREEMENT IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHTS TO
TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING OR COUNTERCLAIM WITH RESPECT
TO ANY MATTER WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH OR RELATED
TO THIS AGREEMENT OR THE OTHER RELATED DOCUMENTS OR THE ENFORCEMENT OF THIS
AGREEMENT OR THEREOF.
* * * * *
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IN WITNESS WHEREOF, the undersigned have duly executed and delivered
this Agreement as of the date first above written.
FLUOROMETRIX CORPORATION
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: President
SCIENTIFIC BIOPROCESSING, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President
SCIENTIFIC INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President
Exhibit A
Form of Escrow Agreement
Please see attached document.
Exhibit B
Form of Promissory Note
Please see attached document.
Exhibit C
Form of R&D Agreement
Please see attached document.
Exhibit D
Form of Non-Competition Agreement
Please see attached document.
Exhibit D-1
Form of Non-Competition Agreement
Please see attached document.
Exhibit E-1
Form of Legal Opinion
The following opinion (the "Opinion") will be subject to customary
qualifications and exceptions. Capitalized terms used but not defined
herein shall have the meanings given to such terms in the Asset
Purchase Agreement.
1. Assignor is a corporation duly incorporated and validly
existing under the laws of Commonwealth of Massachusetts. Assignor
has the corporate power to execute and deliver the Transaction Agreements
(as defined in the Opinion) to which Assignor is a party and to perform
its obligations thereunder.
2. The Transaction Agreements to which Assignor is a party have
been duly authorized by all necessary corporate action on the part of
Assignor and have been duly executed and delivered by Assignor.
3. The Transaction Agreements to which Assignor is a party
constitute the legal, valid and binding obligations of Assignor,
enforceable against Assignor in accordance with their respective terms,
except as enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws
affecting the enforcement of creditors' rights and remedies generally and
by equitable principles of general application.
4. The execution and delivery of the Transaction Agreements to
which Assignor is a party and the performance by Assignor of their
respective terms (a) will not breach or result in a violation of
Assignor's certificate of incorporation or bylaws, (b) will not breach
any judgment, order or decree of any domestic court or arbitrator, known
to us, to which Assignor is a party or may be bound; and (c) will not
constitute a material breach of the terms, conditions or provisions
of, or constitute a default under, any of the Material Agreements (as
defined in the Opinion).
5. Except as disclosed in the Agreement or the exhibits and
schedules delivered in connection therewith, there is, to our current
actual knowledge, no action, suit or proceeding pending against
Assignor or its properties in any court or before any Governmental
Authority which seeks to restrain, enjoin, prevent the consummation
of, or otherwise challenge the Transaction Agreements to which
Assignor is a party or any of the transactions contemplated
thereby.
